CHAPTER 246

FORMERLY

SENATE BILL NO. 297

AN ACT TO AMEND CHAPTER 197, VOLUME 54, LAWS OF DELAWARE, THE CHARTER OF THE CITY OF REHOBOTH BEACH AS AMENDED, WITH REGARD TO THE AWARDING OF CONTRACTS AND THE REQUIREMENT FOR COMPETITIVE BIDDING IN RELATION THERETO.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Section 43, Chapter 197, Volume 54, Laws of Delaware, as amended by deleting in its entirety and substituting in lieu thereof a new Section 43 to read as follows:

"CONTRACTS

Section 43.

A. All contracts for the purchase of materials or for the furnishing of services authorized or permitted by this Charter shall be accomplished by competitive bidding and the awarding of contracts to be to the lowest responsible and responsive bidder.

B. A contract may be awarded to a bidder other than the lowest responsible and responsive bidder if, in the opinion of The Commissioners, the interest of the City shall be better served by awarding the contract to another bidder. Such award shall be made only if the Commissioners make a written determination of the award, describing the reasons why such award better serves the interest of The City. Reason for making such award may include, but are not limited to: unsatisfactory performance on any previously awarded contract by the bidder rejected.

C. Determination of a Responsive and Responsible Bidder.

1. The City Commissioners shall determine that a bidder is responsive before awarding a contract to the bidder. A responsive bid shall conform in all material aspects to the requirements and criteria set forth in the contract plans and specifications.

2. The Commissioners shall also determine that each bidder on any contract is responsible before awarding the contract. Factors to be considered in determining if a bidder is responsible include:

a. The bidder’s financial, physical, personnel or other resources, including subcontracts;

b. The bidder’s record of performance and integrity;

c. Whether the bidder is qualified legally to contract with the City and;

d. Whether the bidder supplied all the necessary information concerning it’s responsiveness.

e. Any other specific criteria for a particular procurement, which the City may establish; provided however, that the criteria shall be set forth in the invitation to bid and is otherwise in conformity with city, state and/or federal law.

D. If two or more responsible and responsive bidders shall bid an equal amount and such amount shall be the lowest bid, the Commissioners may award the contract to any one of them, or may reject all bids.

E. The Commissioners may reject all bids on any contract prior to the award of the contract for any reason it believes to be in the best interest of the City.

F. Competitive bidding shall not be required in any of the following circumstances:

1. The aggregate amount of the contract involved is not more than ten thousand dollars;

2. The purchase of contract is for personal or professional services;

3. The purchase or contract is for any service rendered by a university, collection or other educational institution;

4. The purchase or contract is for any service to be rendered by the State of Delaware or any political subdivision thereof;

5. The purchase or contract is for property or services for which it is impracticable to obtain competition;

6. The public exigency as determined by The Commissioners will not permit the delay incident to advertising;

7. The materials to be purchased are to be used to complete a project under the supervision of the City Manager;

8. The purchase or contract is for property or services for which The Commissioners determine the prices received after competitive bidding are unreasonable as to all or part of the requirement or were not independently reached in open competition;

9. A public emergency as determined by The Commissioners exists.

10. The purchase or contract is for materials, motor vehicles, vehicles, equipment of any kind, tools and other personal property which the State of Delaware has purchased or has chosen for purchase pursuant to the procedures provided by 29 Del.C. §6901 et. seq. or the vendor of said personal property has a contract with the Federal General Services Administration and as a result has been placed on the G.S.A. Federal Supply Schedule.

G. Bidder Pre-qualification Requirements.

1. The City may require any potential bidder on a contract which involves construction, reconstruction, demolition, alteration and repair work, and/or maintenance work and where the aggregate amount of the contract is more than fifty thousand dollars to complete a questionnaire containing any or all of the following information for the purposes of pre-qualification:

a. The most recent audited financial statement and/or financial statement review, as provided by a certified public accountant, containing a complete statement of that proposing contractor’s financial ability and standing to complete the work specified in the invitation to bid;

b. The proposing contractor’s experience on other public works or private projects, including but not limited to, the size, complexity and scope of the firm’s prior projects;

c. Performance reviews of the proposing contractor on previously awarded public works or private construction projects within the last 10 years;

d. Civil judgments and/or criminal history of the proposing contractor’s principals;

e Any debarment or suspension by any government agency;

f. Any revocation or suspension of a license; or

g. Any bankruptcy filings or proceedings.

2. Based upon the proposing contractor’s answers to the pre-qualification questionnaire, The City may deny pre-qualification for any one of the following specified reasons:

a. Insufficient financial ability to perform the contract;

b. Inadequate experience to undertake the project;

c. Documented failure to perform on prior public or private construction contracts, including but not limited to, final adjudication or admission of violations of prevailing wage laws in Delaware or any other state;

d. Prior judgments for breach of contract that indicate the proposing contractor may not be capable of performing the work or completing the project;

e. Criminal convictions for fraud, misrepresentation or theft relating to contract procurement;

f. Inadequate labor supply available to complete the project in a timely manner;

g. Previous debarment or suspension of the contractor by any government agency that indicates the proposing contractor may not be capable of performing the work or completing the project;

h. Previous revocation or suspension of a license that indicates the proposing contractor may not be capable of performing the work or completing the project;

i. Previous bankruptcy proceedings that indicate the proposing contractor may not be capable of performing the work or completing the project or

i. Failure to provide pre-qualification information.

3. Denial of pre-qualification shall be in writing and shall be sent to the contractor within 5 working days of such decision. The City may refuse to provide any contractor disqualified under this section the plans and specifications for the project. The City after receiving a bid from a contractor disqualified under this section shall not consider such bid.

H. Any contractor disqualified pursuant to paragraph G, of this section may review such decision with the City Manager. No action in law or equity shall lie against any agency or its employees, agents and/or consultants, if the contractor does not first review the decision with the City Manager. To the extent the contractor brings an action challenging a decision pursuant to paragraph G of this section after such review by the City Manager, the Court shall afford great weight to the decision of the City Manager and shall not overturn such decision unless the contractor proves by clear and convincing evidence that such decision was arbitrary and capricious."

Approved April 29, 2002